Wednesday, March 2, 2011

A Dissenting Opinion

The Supreme Court of the United States ruled today on the Snyder v. Phelps case. The 8 -1 majority opinion found that my family's pickets are protected speech under the First Amendment. I'm disappointed. The majority opinion written by Chief Justice Roberts explains that

Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. "[S]peech on 'matters of public concern'...is 'at the heart of the First Amendment's protection.'" The First Amendment reflects "a profound national commitment to the principal that debate on public issues should be uninhibited, robust, and wide-open."

He further explains that

Deciding whether speech is of public or private concern requires us to examine the "'content, form, and context'" of that speech, "'as revealed by the whole record.'" As in other First Amendment cases, the court is obligated "to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'"

Ultimately the Court argues that the specific language of the signs:

While [they] may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of oru Nation, homosexuality in the military, and scandals involving the Catholic clergy-are matters of public import.

As such, they are entitled to First Amendment protection.Concerning Al Snyder's contention that the context of the speech - at his son's funeral - makes the speech a matter of private rather than public concern. The Court responds:

The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro's speech. Westboro's signs...reflect the fact that the church finds much to condemn in modern society. Its speech is "fairly characterized as constituting speech on a matter of public concern," and the funeral setting does not alter that conclusion.

As I'm reading the opinion I keep thinking that something is missing. The Court has, in my opinion, made the same error as the Appellate Court before them. No serious consideration is given to the right of a person to bury a loved one in peace. Then I get to Justice Alito's diseenting opinion and there it is.

Justice Roberts makes much of the duty of the Court to consider "the whole record" in determining the nature of the speech and whether it concerns public matters. Buried in the body of his dissenting opinion Justice Alito sheds light on a critical aspect of the Court's thinking.

A part of my family's protest surrounding the death of Matthew Snyder was the online post they made a few days after picketing his funeral. The title of the post was "The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!" In that nifty little outburst of inscribed drivel the language clearly abandoned "public issues", turning brutishly private and personal in nature:

God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver!...you raised him for the devil. Albert and Julie RIPPED that body apart and taught Matthew...to divorce, and to commit adultery...They also...taught Matthew to be an idolater.

How could the Court possibly rule that this language concerned a public issue? Well, as Justice Alito explains, they didn't bother. Footnote #15 explains:

The Court refuses to consider the epic because it was not discussed in Snyder's petition for certiorari.

A critical aspect of the case at both the District and Appellete Court level, and the Supreme Court excludes it on a technicality?!? Alito explains the error of that decision:

The epic, however, is not a distinct claim but a piece of evidence that the jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress. The epic cannot be divorced from the general context of the funeral protest. The Court's strange insistence that the epic "is not properly before us." means that the Court has not actually made "an independent examination of the whole record". And the Court's refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro's protest activities at other times and locations.

It has been my contention all along that protesting at a funeral is unconscionable. For the Court to give greater consideration to Free Speech, at the expense of a citizen's right to bury a loved one in peace, is a dangerous travesty of justice.Mr. Snyder's attorney argued that letting my family by with the hateful, personal attacks on vulnerable private citizens simply because they ALSO are expressing their ideas on public matters was bad law. From this language:

I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected,

Alito clearly agrees.I have argued before that the founding fathers likely never imagined the possibility that someone would ever think it was okay to picket the funeral of a private citizen. If ever there was a just reason to limit the time and place that a person can exercise their First Amendment right to free speech, this would be it. The Court sidesteps their responsibility on this point by suggesting

that the wounds inflicted by viciosu verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral.

Justice Alito points out that

The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. Exploitation of a funeral for the purpose of attracting public attention "intrud[es] upon their...grief, and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undremine public debate.

Well, at least he gets it. In my opinion, the Court dropped the ball today. It shows the inherent weakness in our system of justice when a critical barrier to the decision they wanted to render, the epic, is so easily shunted aside with a bit of judicial slight of hand. The Court had the opportunity to balance the free speech rights with another de facto right to mourn a death in respectful privacy.Justice Roberts concludes the majority opinion with these thoughts:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here-inflict great pain.

What he didn't say is that the majority of the Court today decided to ignore those tears and unnecessarily foist that pain on citizens in the future.

27 Comments:

Freedom of speech is incredibly important, but we also, in a progressive civilized society (not that I'm saying we're progressive- simply that we should aim to be), need to recognize that there must be a limit when that speech begins infringing on the rights of others. More so, we need to recognize the importance and validity of verbal and psychological abuse as valid and true abuse, no different from physical assault.

The pendulum has swung too far the other way when WBC's freedom is upheld over a grieving family's freedom to grieve in privacy and peace. I would suggest that funerals be made off limits to people wishing to exploit their freedom of speech with hate filled rants, but then we would be unable to party at FP's funeral. Meantime I will continue to support both your efforts and those of the Patriot Guard.

As the Blessed Virgin stated at Fatima that "War is a punishment for sin," it is not difficult to further correlate the causation between sin and death. While the abject tragedy of the death of a soldier is indeed horrible, a soldier IS, after all, a soldier. He engages in war and death is even moreso a possibility for one who engages in war than it already is for us who must deal with accidents, criminals, disease and any other form of death which is an imminent possibility for anyone. Witness the 54 million children torn from their mothers' wombs since Roe v. Wade. If war is a punishment for sin, as the Blessed Mother stated, can the current and growing levels of war give us any pause as to the path we have taken since R. v W.?

While I'm very sorry for the circumstances of disruption surrounding the last rites (if we can reliably use such term regarding modern funerals), what may even be worse is the infinitely longer eternity of hatred we may find our collective selves in should we not better ourselves spiritually, rather than predominantly economically and with sexual license the order of the day. Can no one recall Christ saying that whomever looks at a woman with lust in his heart has committed adultry? Shacking up, fornication, STD's, destroyed families, women wearing pants and engaging in infanticide as a matter of personal choice? This, the order of the day in western civilization and we are in wonder of the massive influx of Islam throughout our culture, witlessly forgetting they are the self same people God used to chastise ancient Israel??

Freedom, true freedom is telling someone what they don't want to hear.

I don't think the court is wrong. I do think that what the picketers have done is inappropriate and stupid but once we start to sanction them it is a slippery road for what we can and can not say and where we can and can not say it.

Sorry for your loss, even in death your loved one fights for the rest of us. If for nothing else than to show the stupid exercising their right to being inappropriate and retarded.

Reading the comments here and in other places, I find myself frustrated at the apparent inability of folks to understand the nuances of this discussion. I have never argued that they don't have the right to picket. My entire rebuttal rests on the question of whether society, as a whole, is entitled to another right, to bury a loved one in peace, that their free speech right shouldn't infringe upon.

Those are two profoundly different arguments. To sustain this popular position that we can't infringe on their right regardless of what they say, we must all now stand aside while the 44 states and federal government dismantle the laws they have enacted against funeral protests.

@Robert -- you seriously equate women wearing pants with sin and think this causes wars? wowsers. I have no real response to that one.

but, if you think Roe v. Wade is what is causing humanity's current miseries, consider this: your god performs far more abortions than anybody else. more than HALF of all conceptions don't make it to term but instead spontaneously (that is, naturally) abort.

of course, humanity has been violent and warlike and miserable to each other for about as long as there have been humans, so maybe you're right -- all those abortions DO cause the misery. if that's the case, then your god has set us up good and proper, eh? nice guy.

Yes! There is a huge difference between staging a demonstration about public issues on the capitol steps, and attacking individuals at a private event.Look, if we talk about slippery slopes, let's go the other way. What if a stranger had the right to come into your home and hold forth on abortion at your daughter's 6th birthday party. Would this be OK with you? Would you mind if he yelled at your daughter a bit, admonishing her not to ever even consider an abortion when she grows up? Can he show her a few particularly gruesome photos?I'm fine with their right to free speech in any public spaces, public events, the internet, print media, etc. That should be enough to be going on, don't you think?Also, I'm getting pretty tired of the argument "the Bible says". The Bible is not the basis of law in a secular democracy. Period.

Well-written, Nate. I have spoken with Sara about this issue-the right to perform one last sacred sacrament (to borrow from the Catholics)-that of burial. In almost ALL cultures, spanning the centuries since the beginning of recorded history, burial has been the time of truce no matter the circumstances. WBC mocks God, but he is not misled as to their true intentions. Mine will not be the hand that moves against them, merely the harbinger of their downfall. Best to your immediately family~

Thank you so much for your open voice and heart. It is people like you that lead to hope for those who are hurt by the violations of your family. No matter what ruling in court, I believe you bring comfort to those suffering from the acts of your family, and knowing that the majority of the countries disagrees with WBC's viewpoint is a powerful cure to their distraught, and your voice speaks louder than anyone else's for the majority.

"I'm willing to accept inappropriate comments and jokes about any event, to a certain extent. However, many of you are making comments about the Japanese disaster which approach WBC levels of crassness and inappropriateness. And, that qualifies as trolling, so I'm calling you on it."

Nate, I greatly admire you, but I'm not convinced by your logic here. If I understand you correctly, you're saying that the WBC's rights of speech and assembly should be superseded by the mourner's right to a peaceful funeral. I can understand this attitude, but I'm not comfortable with enumerated rights being cancelled out, essentially, by unwritten and previously unknown rights. We'd be replacing a fairly easy-to-understand and, in the aggregate, desirable rule--"you have the right to free speech"--with something much more vague.

I mean, if we carve out a free speech exception at funerals, where would it stop? Could they protest at wakes? General memorial services? Dedication ceremonies? What if somebody got up at a funeral and berated the deceased, much to the distress of the bereaved? Could we also ban that? What if people are demonstrating outside of a funeral with *positive* messages about the deceased? Should that also be banned? The problem is that any time we make an exception to the First Amendment, it's going to have a bunch of unintended consequences.

Kim: I'm not saying superseded, I'm saying balanced. Even the majority opinion suggests that the current crop of new state laws limiting access to a funeral will be confirmed if/when one of them is challenged to the Supreme Court.

Maybe I'm putting words in your mouth, but I'm struck over and over in the responses I'm getting, by this certainty that this must be an either/or issue. Why? Free Speech, like every right afforded in the Constitution, has limits. Why do we balk at considering another when it is about such a critical issue as burying someone?

As for the unintended consequences you list...are any of these possibilities really so desirable that we can't imagine prohibiting them? If positive messages had to be expressed in another way in order to preserve a funeral protest prohibition, are we intolerably less free as a people?

I respect the unintended consequence argument in general. I understand that far too often laws are used inappropriately. However, I ultimately come back to the strength of my conviction that funerals are too important, too profound, for us to lump them together with all the other events and activities in our lives that could be intruded on by the free speech rights of an individual.

I guess that's the heart of your argument: that funerals are somehow "special" to an extent that ordinary free speech rights need to be curtailed when around them. But I don't get where we're defining this "specialness", aside from people's strong emotions about the topic. Are there other events in which people's right to demonstrate should also be limited, or is it just funerals? If there are other events in this category, how are we defining it?

Just found your blog: Your reference to the court overlooking 'justice' is an interesting insight.

It seems that the idea of justice is often overlooked in preference to specifics of the Constitution. While in no way do I believe the U.S. tries no really cares about the biblical text, I hear your words mimicking those of Micah in the biblical text: "Do justice and seek mercy and walk humbly."

Plain and simple: it's hate speech directed toward individual families, and families have a right to be undisturbed by haters at their funerary rituals. The time for compassion, and Patriot Riders could be over. It might be time to step it up to level Orange. Terrorists do not deserve protection under civil law. I'm sick of abuse, and other crimes under the veil of religion.

In the ruling, and the Justices' inability to examine the whole record, I'd say they also left out a huge chunk of the privacy matter. Considering the funeral _was_ private, which means the nature of the funeral _did_ have the potential to alter the outcome of the case, how does the Fourth Amendment work for other forms of privacy, for that matter? Probably something to do with the Fifth, too, no doubt, huh?

Anyway, they had also forgotten to weigh the Ninth Amendment in the case, and how it accentuates the Westboro Baptist Churchnot's abuse of their First Amendment rights.

@Robert are you a member of the WBC or something? I find you rather suspicious.

Kari, you hit the nail on the head! Freedom of speech does NOT mean freedom from consequences!

Nate, I agree with every word that you said. You are doing something great by being vocal and speaking up for many people who will not. Many people are on your side! Keep up the good work nate you are awesome!

This may be perceived as somewhat cheeky and disrepectful, but I have an interesting take on your father's homophobia. A few recent studies have suggested that homophobia is related to homosexual attractions. It makes sense if you think about the fact that people who are severely homophobic probably spend a lot of time thinking and talking about gay sex. Perhaps you dad feels some same-sex attraction and is kind of repulsed by it. Experiencing same-sex attraction can be really confusing particularly in the context of a religious upbringing and many people tend to feel self-hatred and reflect it outwards. Ted Haggart is a good example of this.